Police unions trying to block news organizations' access to internal police investigations of New Orleans officers also are waging a campaign in the civil and criminal courts to keep such records out of the hands of the city's public defenders office.

Steve Singer, general counsel of the Orleans Public Defenders, said his office has filed public records requests for the New Orleans Police Department's Public Integrity Bureau files of arresting officers in the cases of more than 50 defendants. The office also has sought subpoenas through Criminal District Court to obtain some of these records, he said.

In some cases, the public defenders office might use such records to investigate a claim, without trying to introduce them as evidence during a trial, Singer said. Aggressively investigating potential defenses is fundamental to providing a solid defense for those accused of crimes, he said.

In motions filed in a heroin possession case at criminal court, for example, a public defender argued that the PIB file of an officer previously suspended by the department for falsifying a police report in a different case is clearly relevant. As the officer is the key witness in the heroin case, the information could be used to attack his credibility, wrote Janette Jurado, a public defender.

But in both the civil and criminal arenas, the local branches of the Fraternal Order of Police, Police Association of New Orleans and the Black Organization of Police have maintained that privacy rights of officers trumps the public records law, effectively arguing that the documents related to investigations of citizen complaints against officers should not be made public. Furthermore, police union attorneys have argued that public defenders should be blocked from using these documents in criminal court cases.

Injunction granted

The police advocates obtained a preliminary injunction against the city of New Orleans signed by Civil Court Judge Nadine Ramsey on April 16, blocking the release of PIB files to the public defenders office. The issue also came up this week before Criminal Court Judge Karen Herman, who quashed a public defender's subpoena asking for PIB documents about an arresting officer in the heroin possession case.

In late March, another Orleans Civil District Court judge, Robin Giarrusso, told the city to hand over requested PIB files to The Times-Picayune, saying the documents are clearly public records. Attorneys for the police groups have appealed that decision to a 4th Circuit panel of three judges, which has not yet issued a decision.

Lori Mince, an attorney for The Times-Picayune, said it is "highly unusual and perhaps not permissible" for the police unions to ask two different judges in the same court for the same thing: to block the city from turning over the same kind of records.

But Ted Alpaugh, an attorney for the Fraternal Order of Police, said it is permissible to file a separate request for injunction because the cases "have some different wrinkles, " noting that the information would be used for different purposes by the public defense attorneys and the newspaper.

Because the police organizations sued the city to block release of the PIB files to the public defenders office, that office was never notified and therefore did not present its arguments to Ramsey, Singer said. Office leaders are still mulling whether to intervene in the case, while waiting to see what happens in the appeal of The Times-Picayune case, he said.

Alpaugh said any notification would have been the responsibility of the city. The city attorney's office did not respond to an e-mailed request for comment.

Fifth Amendment issues

One key argument made by the police unions is that when the NOPD investigates allegations of wrongdoing by its officers, they are required to testify if the investigation does not concern a possible crime on their part. This amounts to a violation of the officer's Fifth Amendment rights against self-incrimination if the information gathered by the PIB investigation is subsequently used in other forums, the groups argued in a brief at civil court.

Officers also have a "reasonable expectation" that their personnel records will be kept confidential, which should outweigh the value of public disclosure, attorneys argued.

Singer called both the Fifth Amendment argument and privacy concerns "red herrings."

"I don't get why you would have a privacy right as a police officer for misconduct you engaged in during the course of your official duties, " he said.

Attorneys for the police unions also are misunderstanding the Fifth Amendment protection against self-incrimination, which only applies if a person is compelled to testify against himself and then prosecutors decide to charge that person with a crime, Singer said.

When a defense attorney brings up a previous bad act by an officer during the trial of a public defenders office client, the officer is not himself facing criminal charges, Singer said.

. . . . . . .

Laura Maggi can be reached at lmaggi@timespicayune.com or 504.826.3316.